Grahamstown • 6140 • South Africa

FACULTY OF LAW • Tel: (046) 603 8427/8 • Fax: (046) 6228960

Web Page: http://www.ru.ac.za/academic/faculties/law

LAW OF PROPERTY AND SECURITY A

2009

1. INTRODUCTION

Overview

The Law of Property and Security A is a stand alone semester course

that counts as a credit in the Faculty of Law for LLB2 as well as one
of the courses for Legal Theory 3 in the Faculties of Humanities,
Science and Commerce.

The purpose of the course is

 To provide the students with an understanding of the purpose,

scope and development of the Law of Property.
 To familiarize students with the general principles of ownership
and acquisition of real rights.
 To enable students to classify and distinguish real and personal
(creditor‟s) rights.
 To introduce the concepts of expropriation and deprivation of
property rights in terms of the Constitution of the Republic of
South Africa 1996 and applicable case law.
 To introduce students to the sources of current law of property.
 To assist students in research and problem solving skills and
the terminology commonly encountered in the law of property.

1.2 Credit Value

10 Credits. This is calculated on the basis of 100 “notional hours”

that a student would spend in lectures, learning for tests/exams over
the semester.

1.3 Assumptions of Prior Learning

 The student must be capable of communicating in written and

spoken English.
 The student must be able to work/study independently and be
capable of working in groups.

Law of Property and Security A - 2009 1

  The student must be able to read, analyse and extract principles
from law reports, statutes and other sources.
 The student must know how and where to access resources
(including electronic) such as textbooks, law reports and
statutes in the Law Library.
 The student must be able to identify and apply legal principles to
a set of facts.
 The student must have a working knowledge of legal
referencing and be able to apply these to their written work.

2. OUTCOMES

Critical Outcomes

Students will be able to:

(a) identify and solve problems.

(b) work in a team and individually.
(c) collect, analyse and evaluate information from the various
sources of law, as well as information conveyed in the lecture
room.
(d) Communicate effectively in class debates and written
assignments.
(e) Use technology in legal research.
(f) Recognize problem-solving contexts involving the law of
property.

Specific Intended Outcomes

(a) To understand the purpose, scope and development of the Law

of Property.
(b) To understand the principles of ownership and how real rights
are acquired.
(c) To distinguish between real and personal rights and
demonstrate an understanding of the legal consequences
arising from each.
(d) To understand and explain the concepts of expropriation and
deprivation
(e) To apply the knowledge acquired during the course to solve
practical problems arising from the holders of property rights.
(f) To understand the extent to which the courts have succeeded in
harmonizing the principles of the common law with the
constitutional values of equality, equity and justice.

Law of Property and Security A - 2009 2

3. TEACHING METHODS

The teaching method will include, inter alia, the discussion of the law as
contained in the main sources, namely textbooks, case law and legislation
in viva voce lectures. Students will be expected to read chapter headings
in advance, as they will be required to participate actively during the
lecture

There is no comprehensive handout for the course but the students will be
provided with a course outline. Students are expected to take their own
notes during class. Supplementary material will also be supplied from
time to time.

Students are expected to assume responsibility for their learning by

reading ahead before each lecture and consolidating afterwards. Lectures
are compulsory and a student may not miss more than THREE lectures
without a valid Leave of Absence. Each of the topics indicated in the
course content will require about three to four lectures. There is a heavy
emphasis on the cases which are listed in the Case book for students.

4. RESOURCES

The core reading and study material for this course are the leading
judgments on the aspects of the law of property to be studied. These
cases may be found in the law reports, which may be accessed in the Law
Library, both in paper and electronic form.

The prescribed textbooks are A J van der Walt and G J Pienaar

Introduction to the Law of Property (5th edition), Juta & Co. 2006 and Law
of Property Casebook for Students 6th edition, Juta.

Badenhorst et al Silberberg and Schoeman‟s The Law of Property (5th

edition) 2006, Carey Miller with Anne Pope Land Title in South Africa,
Juta,(2000), and AJ van der Walt Constitutional Property law, Juta & Co,
(2005), five copies of the latter are available in the library.

5. STUDENT ASSESSMENT

Assessment Strategy

The final mark for the course is comprised of the following components:

Examination: out of 70 marks

Class work: out of 30 marks
Total: 100 marks

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 Tests

Will be out of 35 marks and students will write the test in the designated
lecture period of 45 minutes. The test will contain questions equivalent to
that which may be found in the June examination. The test is
COMPULSORY and counts for half the class mark.

Assignment

There is one assignment for this course that is submitted at the beginning
of the second term. The assignment should not exceed 1000 words in
length and comprises half of the class mark. The assignment is
compulsory. No late assignments will be accepted for marking and will
receive 0% unless the student has a written valid Leave of Absence.

Examination

In June there will be a two-hour paper that will be out of 70 marks. The
class component will count 30 marks. There will be three questions on the
paper and the student will have to choose two questions to answer. Each
question carries 35 marks and they will require students to be able to
explain legal rules and principles in a theoretical sense, to write a case
note on leading precedents, as well as apply their knowledge to solving
practical problems.

The examination is compulsory and an external examiner assesses the

quality of both the examination paper and students‟ answers.

6. EVALUATION

The course is evaluated on a three year cycle and students evaluate by

filling in a questionnaire that requires both quantitive and qualitative
responses. The responses are processed by the Academic Development
Centre who compiles a report highlighting weaknesses and strengths
which is then sent to the lecturer concerned who in turn discusses the
content with the Dean and Deputy Dean of the Faculty. The feedback and
issues arising from the evaluation as well as the action taken to address
them is given by either the Dean or Deputy Dean at the earliest
opportunity.

7. COURSE OUTLINE

7.1 Purpose of the Law of Property

7.1.1 Purpose of the law property. What is the Law of Property all
about?

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 According to A J Van der Walt and G J Pienaar.

Introduction to the law of Property (2006) : 10 the law of property

deals with the rights and actions of persons with regard to things and
other forms of property as well as other relations between persons
and property. “It describes the ways in which property rights can be
acquired and exercised lawfully and remedies by which they are
protected against infringement, as well as the legal results and
implications of other relations between persons and property.”

In dealing with the meaning of property as set out below students will
realize that property in the new constitutional order has been
constitutionalised and the emphasis in case law is on the balancing
of competing interests. The case of Port Elizabeth Municipality v
Various Occupiers 2005 (1) SA 217 (cc) is illustrative. This is case
No.31 in the Law of Property Casebook for Students.

In paragraph 37 Sachs J states: “The Constitution and PIE confirm

that we are not islands unto ourselves. The spirit of ubuntu, part of
the deep cultural heritage of the majority of the population, suffuses
the whole constitutional order. It combines individual rights with a
communitarian philosophy …”The cases emphasize that property
rights are not absolute. See section 25(2), (3) and (4) of the
Constitution.

7.1.2 Meaning, function and the changing face of the Law of Property.

See pages 6 – 11 below.

7.2) Sources of the current law of property

See pages 11-13 below.

7.3)The legal concept of property

See page 13 below.

(a) Property as rights

(b) Property as objects of rights

(c) Concept of a thing

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 7.4) Classification of property

(a) Patrimonial rights and patrimonial objects

(b) Classification of things

7.5 Rights

(a) Real rights and creditor‟s rights

 The test for the registrability of rights. See Ntusi Mbodla:

“The test for registrability of rights: What is the law after
Cape Explosive Works?” (2002) 119 SALJ 277 and CG
Van der Merwe “Numerus Clausus and the development of
New Real rights in South Africa” (2002) 119 SALJ 802; A
Domanski “The recognition of new categories of real rights:
Enter the contingency principle” 2004 T.H.RHR 673.

 Registration of rights other than real rights.

7.6 Acquisition of real rights: General principles

7.7 Ownership: General principles

 The concept of ownership

 Co-ownership
 Limitation on ownership
 Original acquisition of ownership
 Protection of ownership
 Termination of ownership

8. Meaning of property

According to Professor I.M. Rautenbach “Introduction to the Bill of

Rights” in Bill of Rights Compendium…1A73 “Property”, apart from
providing that “property” is not limited to land (s 25 (4) (b)), the Bill
of Rights does not define property. In his view a choice will
eventually have to be made between various alternative meanings
“for example, property as a “thing” – ownership, property as
patrimonial interests acquired through personal endeavour, or
property as comprising all patrimonial interests. See further, Van
der Walt A J “Property rights, land rights and environmental rights”
in Van Wyk et al (eds) Rights and Constitutionalism: The New
South African legal Order, Cape Town 1994 at 454-401 and

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 Chaskalson and Lewis “Property” in Chaskalson et al (eds)
Constitutional Law of South Africa, Cape Town (1996) par 31.

According to Badenhorst et al Sieberberg and Schoeman’s The

Law of Property, 5th Ed (2006) at page 1 “this term signifies various
distinctly different concepts. In the first place it may signify the right
of ownership in a legal object. Secondly, it may also refer to the
legal object to which this right relates… Since the introduction of
the new constitutional order, and with it the property clause in the
Bill of Rights, the term “property” may, thirdly, denote a variety of
legal relationships qualifying for protection as such under the
Constitution…”Property in the three senses mentioned above,
“…implies the existence of rights and duties among individuals
mutually, and between specific individuals and the state…”. The
authors conclude that property in the broad sense may include
patrimonial rights and patrimonial objects. They further point out
that in order to distinguish law of property from the law of
obligations it is necessary to limit the ambit of the law of property to
include only the various legal norms that regulate those legal
relationships between legal subjects concerning things – hence the
emphasis on real rights, things and patrimonial rights serving as the
object of limited real rights”.

Theunis Roux "Property” in Cheadle et al, South African

Constitutional Law: The Bill of Rights, Butterworths (2002) at 449
makes the following important comments: "at common law, the
expression "property" embraces both the object of real rights
(corporeal and incorporeal things) and real rights themselves... In
modern South African law, contractual rights to performances (such
as shares in a company), apart from the rights of a lessee where
the huur gaat voor koop rule applies, are generally not regarded as
property rights. As the Diepsloot case shows (Diepsloot Residents
and landowners' association and others v Administrator, Transvaal
1994 (3) SA 336 (A), however certain subsidiary interests in land
are enforceable as property rights, provided their relationship to a
valued stick in the property rights bundle can be established...
Customary Law interests in land... should be treated as property
rights conferred or recognised by statute...

Property rights recognised in legislation are legion, ranging from

extensions of common - law ownership rights (sectional title
interests) to interests in land recognised as property rights under
the new land reform legislation (e.g. the residence right of an
occupier in terms of s 6 (1) of the Extension of Security of Tenure
Act 62 of 1997) ... As far as interests not previously recognised as
property are concerned, there is a wealth of foreign law to suggest

Law of Property and Security A - 2009 7

 that certain personal rights to performances should enjoy
constitutional protection under the property clause. Thus shares or
other personal interests in a business, goodwill and right of
management of a company, have all been recognised as
Constitutional property in foreign law..."

See also A J van der Walt An overview of developments in

Constitutional property law since the introduction of the property
clause in 1993 in (2004) 19 SAPR/PR 46 - 82. On the meaning of
property see also Ian Currie and Johan de Waal The Bill of Rights
Handbook, 5 ed Juta (2005) Chapter 25.

See the following cases dealing with the meaning of property:

Geyser v Msunduzi Municipality 2003 (3) BCLR 235 (N) at 249;

Transkei Public Servants Association v Government of RSA 1995

(9) BCLR 1235 (TK) at 1246 – 1247). This case implicitly accepted
the expanded notion of property introduced by Charles A Reich in
1964 Yale Law Journal Vol 73 p 733 which raises a number of
concerns which are now receiving serious consideration in recent
publication

8.2 Persons and institutions bound by the right to property

No one may be deprived of property: See the meaning given to the

word “deprive” in First National Bank 2002 (4) SA 768 (cc). See
also the distinction drawn by the court between deprivation and
expropriation. See Van der Walt on the notion of constructive
expropriation 2002 THRHR 459 and Mostert in 2003 SAJHR 567.
Steinberg v South Peninsula Municipality 2001 4 SA 1231 (SCA).
See also Currie and de Waal (2005): 541 on the relationship
between deprivation and expropriation.

See section 25 (1) and section 36(1). The following cases are
important on the interpretation of arbitrariness in section 25(1).
First National Bank case, supra and the National Director Public
Prosecutions v RO Cook Properties 2004 8 BCLR 848 (CC),
Mkontwana v Nelson Mandela Metropolitan Municipality 2005 (2)
BCLR 150 (CC). See again Comments by Currie and de Waal on
Arbitrariness, procedural fairness and substantive fairness at 542-
550.

8.3 Purpose of the property clause (section 25(1))-(2). The structure of

analysis

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 8.4 Expropriation

Compensation and calculating thereof : City of Cape Town v

Heldeberg Park Development (Pty) Ltd 2007 (1) SAI (SCA).

8.5 Seizures of property and sales in execution

See the following cases:

Lesapo v North West Agricultural Bank 1999 (12) BCLR 1420 (cc);
Zondi v MEC for Traditional and Local Government 2005 4 BCLR
347 (CC) and Prophet v National Director of Public Prosecutions
2006 1 SA 38 (SCA). In National Director of Prosecutions v Gerber
and Another 2007 1 SA 512 (W) the court held that there must be
sufficient reason for deprivation of property in terms of Chapter 6 of
the Prevention of Organized Crime Act 121 of 1998.

8.6 Law of Property and the law of things

In the past this branch of the law was known as the law of things.
Now there has been a shift from things to property. The latter is
said to refer to a wide variety of assets that make up a person‟s
estate or belongings and which serve as objects of the rights that
such a person exercises in respect thereof. The former is said to
denote the object of a right in the restricted meaning of referring
only to corporeal or material objects- the law relating to these
concepts should have a corresponding meaning.

8.6.1 Social function and substance of the law of property

The law of property seeks to ensure that the right of ownership is

not used in a manner that is injurious to other members of society,
for example, restrictions placed on the owner‟s ability to erect
buildings on his or her land in public interest e.g. Town Planning
and Township Ordinances; anti-pollution regulations, factory
regulations, sanitary regulations etc.

Limitations may be imposed by private law in the interests of

neighbours e.g. the law relating to nuisance. Roux in the
article referred to earlier discusses a number of foreign cases
where the courts considered individual court challenges
against state limitations on the use of private property where
the claimants perceived the limitations as amounting to
uncompensated expropriations. See pages 452 and 457.

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 8.6.2 Changing face of the law of property

8.6.2.1 Emergence of a new property law framework

See in this regard the following recent publications: D L

Carey Miller "A New Property," (1999) 116 SALJ 749 at
751 and Theunis Roux "Continuity AND Change in a
Transforming Legal Order: The impact of section 26(3) of
the Constitution on South African law" (2004) 121 SALJ
466 and Karrisha Pillay "Property v Housing Rights:
Balancing the interests in eviction cases" (2004) 5 E S R
Review p16. The latter is a comment on Port Elizabeth
Municipality v Various Occupiers CCT 53/03, a Judgment
handed down on 1 October 2004. Carey Miller (1999) at
751 is of the view that changes to established property
law and instances of new exceptions to its principles
occur in the context of the reform legislation. The author
refers to the new property concepts of "initial ownership"
and "beneficial occupation" referred to in the
Development Facilitation Act 67 of 1995. The Bill of
Rights introduced the notion of access to property as a
fundamental human right.

Section 26 of the new Constitution is important in this

regard. It guarantees everyone the right to have access
to adequate housing.

Sec 26(3) prohibits the eviction of a person from their

home or has their home demolished without an order of
court made after considering all the relevant
circumstances.

This section impacts negatively on the common law right

of the owner to evict someone from his property (e.g. a
lessee in the case of holding over). There are certain
procedural safeguards, which have been introduced by
PIE.

Badenhorst et al at page 8 think that recent decisions of

the Supreme Court of appeal in Ndlovu v Ngcobo; Bekker
v Jika [2002] 4 ALL SA 384 (SCA) and Brisley v Drostsky
2002 (4) SA 1 (SCA) may result in the creation of new
rights in property in the broad sense. It is doubtful
whether the Brisley case had this effect. The latter
concerned with the holding over after the termination of a

Law of Property and Security A - 2009 10

 lease. Ndlovu case was another instance of holding over
after termination of a lease. The Bekker component of
the case concerned the person who had defaulted in his
mortgage bond and refused to vacate the premises to
allow the new owner to take occupation. The provisions
of PIE were invoked in defence of the continued
occupation.

The problem seems to centre around the procedural

requirements to be observed in the enforcement of the
rights of ownership. A good example of this kind of case
is provided in Modderklip Boedery (Pty) Ltd v Modder
East Squatters and Another 2001 (4) SA 385 (w) where
the police refused to assist the owner in removing
thousands of land invaders from his farm. The owner in
the Modderklip case alleged that the squatters had
infringed several of his constitutional rights protected in
Chapter 2 of the new Constitution. One of these rights
was section 25 (1) right, namely a guarantee against
arbitrary deprivation of property except in terms of a law
of general application. See also the First National Bank of
SA Ltd t/a Wesbank v Commissioner of the South African
Revenue Services 2002 (7) BCLR 702 (cc) par 50. In the
above case the Constitutional Court held that any
interference with the use, enjoyment or exploitation of
private property is a deprivation of that property in the
constitutional sense (para 57). The court said that
deprivation is a wide concept, encompassing
expropriations. All expropriations are deprivations but not
all deprivations will have the effect of expropriating
property..." See also the comments made by Roux (2002)
at 452 on the distinction between deprivation and
expropriation in the context of the cases discussed
therein. Although the Constitutional Court in the FNB
case cautioned against any wide definition of property,
Roux feels that the more widely the courts define
constitutional property, the more carefully tailored the
definition of expropriation has to be. See his reference to
the Zimbabwe case of Hewlett v Minister of Finance and
Another 1982 (1) SA 490 (25). See also useful comment
on the FNB case by Anton Kok 2004 T.H.R.H.R 683.

On the interpretation, application and limitation of

property rights see generally AJ van der Walt
Constitutional Property Law pp 18 – 56.

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9. Sources of the current law of property

9.1 Common law

Common law as a source of the law of property refers to the

principles of Roman-Dutch law that have been retained. These
principles come from three distinct sources:

(a) Roman law (distinction between ownership and possession,

ownership and limited real rights, the notion of dominium etc.)

(b) Germanic customary law as modified in the 16th and 17th

centuries (distinction between movables and immovables, the
system of land registration and the development of the
institution of notarial bonds etc.)

(c) English law (99 year leasehold, the recognition of attornment

as a mode of delivery of movables). The common law
principles, however, have to be harmonized with the objects of
s 39(2) of the Bill of Rights see Kusa Kusa CC v Mbele 2003
(2) BCLR 222 (LCC) where Gildenhys AJ made the following
remarks: "under the common law, an owner of land is entitled
to apply to court for an eviction order by simply alleging his
ownership of the land and stating that someone else in
occupation of the land [Graham v Ridley 1931 TPD 476;
Chetty v Naidoo 1974 (3) SA 13 (A) at 20A).

The Constitution and post-apartheid land reform legislation placed

restrictions on the common law right of eviction, and in some cases
overrode the common law ..." par 4. See also the cases referred to
at page 7 of the Handout.

9.2 Legislation

The following statutes are important:

(a) Expropriation Act 63 of 1975 and its application in City of Cape

Town v Helderberg Park Development (Pty) Ltd 2007 (1) SA 1
(SCA);

(b) The Deeds of Registries Act 47 of 1937;

(c) Extension of Security of Tenure Act 62 of 1997 (ESTA);

(d) The Prevention of Illegal Eviction from and Unlawful

Occupation of Land Act 19 of 1998 (PIE) and

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 (e) Land Reform (Labour Tenants) Act 3 of 1996.

In Ndlovu v Ngcobo 2003 (1) SA 113 (SCA) Harms JA said that PIE
gives 'unlawful occupiers' some procedural and substantive
protection against eviction from the land.

One most important feature of the post-apartheid legislation dealing

with the law of property is the introduction of the notion of justice
and equity. See comments in this regard in ABSA Bank v Murray
and Another 2004 (1) BCLR 10(C).

9.3 Case law

There is a growing body of case law affecting the law of property.

See, in addition to the cases already referred to, the following:
Modeler East Squatters Greater Benoni City Council and others v
Modderklip Boedery (Pty) Ltd case no. 187/03 and 213/03
judgment handed down by the Supreme Court of Appeal on 27 May
2004; Transkei Public Servants Association v Government of the
Republic of South Africa 1995 (-) BCLR 1235 (TK). Other cases are
noted in the casebook. The judgment of the Constitutional Court in
President of the Republic of South Africa and Another v Modderklip
Boedery (Pty) Ltd 2005 (5) SA 3 (CC) is noted at page 403 of the
Casebook.

9.4 Constitution

The post-apartheid legislation relating to property is rooted in ss 25

and 26 of the Constitution. The Constitution of the Republic of
South Africa 1996 has had a huge impact on the law of property.
The emphasis is on the promotion of the "spirit, purport and the
objects of the Bill of Rights" (s 39(2) of the final Constitution.)

Assignment

Write a note on City of Johannesburg v Rand Properties (Pty) Ltd and Others
2007(1) SA 78 (W). You should compare the approach of the court in the above
case with that of the Transvaal Provincial Division in Cashbuild (South Africa)
(Pty) Ltd v Scott and Others 2007 (1) SA 332 (T).
[35]

Length : Not more than 1000 words

Due Date : To be announced in class

Law of Property and Security A - 2009 13

10. The legal concept of property

10.1 Property as rights

“Property then encompasses at least the real rights recognised by

the law of property, rights such as ownership, mortgage, lease,
servitude, mineral rights, liens. It also encompasses at least some
of the component rights, making up what is termed the „bundle of
rights that constitutes plenary ownership”… Iain Currie & Johan de
Waal, The Bill of Rights Handbook, Fifth Edition (2005) at p 538.

See also the various kinds of rights noted by AJ van der Walt and
GJ Pienaar Introduction to the law of Property, Fourth Edition, Juta
(2002) p 15. See also the following sources: Silberberg and
Schoeman‟s The Law of Property, Fourth Edition edited by
Badenhorst, Pienaar and Mostert p 19, Van der Merwe vol 27
LAWSA.

10.2 Definition of a right and the bearers of rights. See the FNB
case.

10.3 Property as objects of rights: Badenhorst et al p 21.

11. Things: Van de Walt and Pienaar p 14 – 16.

11.1 Characteristics of a thing

Corporeality
External to humans
Independence
Subject to juridical control
Useful and valuable to humans

11.2 Classification of things: See generally Badenhorst et al and Van

de Walt and Pienaar.

11.3 Registrability of Rights, Ex Parte Geldenhuys 1926 OPD 155 and

the other cases noted in the prescribed textbooks. See also Van
de Walt Casebook for Students of law of Property. Students are
required to study the provisions of s 63 (1) of Deeds Registries Act
47 of 1937 and exceptions referred to in s 63 (2). See also Van der
Merwe Volume 27 LAWSA paragraph 45. The following cases
should be studied and compared: Lorentz v Melle & others 1978 (3)
SA 1044 (T), Pearly Beach Trust v Registrar of Deeds 1990 (4) SA
614 (C), Cape Explosives Works Ltd and Another v Denel (Pty) Ltd
and others 2001 (3) SA 569 (SCA), Fine Work Products of South

Law of Property and Security A - 2009 14

 Africa Ltd v Director of Valuations 1950 (4) SA 490 (D) and Kain v
Khan 1986 (4) SA 251 (C).

11.4 Registration of Personal Rights see Silberberg and Schoeman‟s

The Law of Property, 4 ed p 68-73.

11.5 Acquisition of real rights: General Principles

Principle of numerus clausus

Absolute character of real rights. See the legal effect of
legislation such as P/E and ESTA on rei vindicatio
Publicity principle and the doctrine of notice. See the case of
Fre’s (Pty) Ltd v Ries 1957 (3) SA 575 (A).
Specificity principle. See also the case of Kain v Khan 1986 (4)
SA 251 (C).
Transmissibility
Abstract principle. See Silberberg and Schoeman‟s The Law of
Property 4 ed on distinction between abstract and causal
theories of transfer p 82

11.6 Modes of acquisition: original and derivative methods

Essential elements in the transfer of real rights

The doctrine of notice and its application Silberberg and
Schoeman‟s The Law of Property p 87-92, a recent case on the
application of the doctrine of notice on double sale is that of De
Villiers v Potgieter and Others NNO 2007 (2) SA 311 (SCA).

12. Concept of Ownership

See chapter 6 of Silberberg and Schoeman‟s The Law of

Property.
Limitation of ownership. This refers to public law and private
law limitations. The leading cases in this area are noted in
Silberberg & Schoeman‟s The Law of Property. See also the
case of Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd
2007 (2) SA 363 (SCA) (on the right of owner of land to lateral
and surface support – mining activities).
Recent cases on abatement of nuisance include: Laskey and
Another v Showzone CC and Others 2007 (2) SA 48 (C) and
Allaclas Investments (Pty) Ltd and Another v Milnerton Golf
Club 2007 (2) SA 40 (C)

12.1 Co-Ownership

Law of Property and Security A - 2009 15

 See generally chapter 7 of Silberberg and Schoeman‟s The Law of
Property and Van der Walt & Pienaar (2005).

12.2 Original Acquisition of Ownership

See generally Chapter 8 of Silberberg and Schoeman‟s The Law of

Property. See South African National Parks v Weyer Henderson
and Others 2007 3 SA 109 (SE) on acquisitive prescription.

12.3 Derivative Acquisition

See Chapter 11 of Silberberg & Schoeman‟s The Law of Property.

13. Protection and loss of Ownership

Legal remedies

Law of Property and Security A - 2009 16

 Law of Property and Security A – 2009

Lectures No 1, 2 and 3

1.1 Purpose of the Law of Property

1.2 Meaning of property : Common Law

1.2.1 Property within the property clause

1.2.2 Purpose of the property clause:

See generally the following cases:

Harksen v Lane NO and Others1998 (1) SA 300 (CC) dealing with

the position under the interim constitution; First National Bank of SA
Ltd t/a Wesbank v Commissioner for the South African Revenue
Services and Others 2002 (4) SA 768 (CC); Mkontwana v Nelson
Mandela Metropolitan Municipality 2005 (2) BCLR 150 (CC).
These cases gave an expanded meaning of property. See also
Kevin Hopkins and Kate Hofmeyer 2003 SALJ 48. The FNB case
is noted as Case No 6 in The Law of Property Casebook for
Students.

1.2.3 Deprivation of property: see in particular Mkontwana case.

1.2.4 The relationship between deprivation and expropriation: Haksen

and the FNB cases.

1.2.4.1 law of general application

1.2.4.2 arbitrariness

1.3 Expropriation

1.3.1 Constructive expropriation: Steinberg v South Peninsula

Municipality 2001 (4) SA 1231 SCA.

1.3.2 Seizures of property and sales in execution.

1.3.3 Limitation of Property rights : s36 of the Constitution.

1.5.4.1 Limitation in terms of land reform statute such as

ESTA : Nhlabati v Fick 2003 (7) BCLR 806 (LCC) and
Nkou v Buhoman 2002 1 SA 372 (SCA).

Law of Property and Security A - 2009 17

 Lectures No 4 and 5

Emergence of the new property framework. See generally the sources

referred to at page 9-11 and the sources of the current law of property.

Lecture No 6

Property as rights : See pages 13-15

Law of Property and Security A - 2009 18